It is all obvious or trivial except…

Is rape really rape?

And we\’ve most certainly got a chorus of voices insisting that rape really is always rape. And I\’m not entirely sure that I agree.

Imposing sex on someone without their consent is rape, yes. This is true whether it is leaping out of the bushes, slashing them with a knife and leaping on or whether it\’s somewhere in that minefield of boozy misunderstandings about consent.

To that extent, yes, rape is rape.

But then violence against the person is also always violence against the person. And we have gradations of that offense, from what, attempted bodily harm up through aggravated, gross (is that what GBH stands for?) via reckless endangerment through misadventure perhaps (any lawyers want to give the correct classifications?) and into attempted murder and murder itself.

All are indeed violence against the person and yet we do distinguish between them. And in that sense I\’m not sure at all that all rape is rape. For I do think there is a difference of degree between the leaping out of bushes and the boozy misunderstandings.

Or, if you\’d like to use the current example, starting off a morning quickie after the exercise of the night before while the other person is still asleep. This may well be rape in that first sense. But is it in the second? Is it the same grade of crime?

One reader here has pointed out how after getting lucky one night he found himself being woken up by a blow job. This is, in that first definition of rape, indeed rape. It has to be said that it continued to his consent, but it is, in that all rape is really rape definition, a rape. Does this deserve the same punishment as the leaping out from behind the bushes?

I realise that I\’m not supposed to say this but I do think that there would be a much greater societal willingness to treat all sex without consent as a punishable crime (along with actually being able to get juries to convict for it, the CPS to prosecute and so on) if we did in fact say that not all rape is rape. That sex without consent is a crime that comes in gradations.

That we\’d actually get to the point where all rape really is rape by denying that all rapes are rape.

One thing we can say with absolute certainty about this issue is that a large number of people do not understand the allegation.

It is quite clear that the gravamen of the offence described is that Mr Assange had sexual intercourse with her without a condom and that she had only been prepared to consent to sexual intercourse with a condom. … the fact of protected sexual intercourse on other occasions cannot show that she was, or that Mr Assange could reasonably have believed that she was, in her sleep consenting to unprotected intercourse. The fact that she allowed it to continue once she was aware of what was happening cannot go to his state of mind or its reasonableness when he initially penetrated her. Once awake she was deciding whether to let him go on doing what he had started. However it is clear that she is saying that she would rather he had not started at all and had not consented. The prosecution case on rape is or includes the start of sexual intercourse: its references to “consummation” cannot in context be confined to its conclusion or to ejaculation. It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did.

One reader here has pointed out how after getting lucky one night he found himself being woken up by a blow job. This is, in that first definition of rape, indeed rape. It has to be said that it continued to his consent, but it is, in that all rape is really rape definition, a rape. Does this deserve the same punishment as the leaping out from behind the bushes?

It isn’t rape under English law and it does carry a lesser punishment than rape.

If the alleged offender does not have consent or reasonable belief in consent, it would be “Causing sexual activity without consent”, s4 Sexual Offences Act 2003, and the maximum term of imprisonment is ten years. The maximum for rape is life imprisonment.

The problem is that on the one hand anyone who considers consensual sex between a 17 year old and a 15 year old to be morally equivalent to violent sexual assault is clearly a cretin. But on the other, there is an argument – with which I disagree, inter alia – that rape is a personal experience and to tell one victim that they should be less traumatised by a drunken date rape than another by a knife-to-the-throat rape is disgusting.

And then – factual corrections from criminologists welcomed – I understand that knife-to-the-throat rapes are comparatively rare, whereas ‘boyfriend rapes’ are not.

As for the “drunken consent” thing, that I’ve *never* understood. Surely if a crime committed whilst drunk (like, say, rape) is still a crime (and it indubitably is) then consent given whilst drunk is still consent? Surely?

Interesting; forcing a woman to give a blowjob wasn’t rape until 2003.

And ukliberty (#8) is right – what the girl did to your reader in the morning couldn’t be rape, it was just sexual assault. Rape needs the offender to “penetrate the vagina, anus or mouth of another person with his penis.”

And legally, it’s still only men who can commit rape; you need a penis, otherwise it’s assault by penetration (although that also carries a life sentence, so it’s only a semantic difference).

In English law, rape is penetration with the penis without consent, or reasonable belief that consent has been given. A person who is asleep or otherwise unconscious is presumed not to have given consent unless the defendant can adduce sufficient evidence to the contrary.

Penetrative sex with a person under 13 is rape, regardless of consent.

Penetrative sex with a person over 13 but under 16 is an offence unless the perpetrator reasonable believed that the person was over 16, but not rape if the person consented.

Drunken consent is still consent, provided that the person giving it has the freedom and capacity to make that choice.

When it comes to sentencing, courts do not treat all rapes as equal. It is explicitly a mitigating factor if the “victim engaged in consensual sexual activity with the offender on the same occasion and immediately before the offence “

ISTM there is nothing complicated about the law as it stands, and ‘degrees of rape’ would only serve to complicate it. What makes rape cases difficult is that usually it is one person’s word against another’s.

Some people are just ignorant, is all, and sadly some people still think things like think flirting and skirt length makes the victim culpable – even women, and a significant proportion at that.

If consent is predicated on condom use, and a condom isn’t used, and the woman complains to the police, then rightly there will be a rape investigation. If there is a reasonable prospect of conviction, and if it is in the public interest to prosecute, then the alleged offender will be prosecuted. There is a potential maximum sentence of life imprisonment. But the sentence in this particular example will probably be less than, say, that for a case where violence was used.

If consent is predicated on condom use, and a condom isn’t used … But the sentence in this particular example will probably be less than, say, that for a case where violence was used.

I would say that this may fall in to the one and only permitted mitigating factor – previously engaged in consensual sex immediately before. But the range – 4 to 8 years – only suggests to the judge a one year maximum drop from the starting point of 5 years.

“Some people are just ignorant, is all, and sadly some people still think things like think flirting and skirt length makes the victim culpable – even women, and a significant proportion at that.”

Yes, and they are idiots. But that doesn’t make the people who attack them ‘not idiots’. Saying that a woman wearing a short skirt is somehow culpable in her own rape is barking. But saying that it’s not a good idea to wear certain clothes in certain settings doesn’t mean that. If I walk through a deprived and violent part of town in full evening dress, drunk, waving my wallet around, it doesn’t mean I secretly want to be mugged, and sentencing would reflect that, but that doesn’t make it a great idea, either.

And braindead slogans like “Don’t tell me not to dress like a slut, tell men ‘don’t rape'” are just antagonistic nonsense. The law does tell men ‘don’t rape’, through the medium of sending them to prison if they do.

“One reader here has pointed out how after getting lucky one night he found himself being woken up by a blow job. This is, in that first definition of rape, indeed rape. It has to be said that it continued to his consent, but it is, in that all rape is really rape definition, a rape. ”
I have often told my wife that if she ever wants to start anything whilst I am sleeping she can.
She always replies – “Thanks but you can’t”

“ISTM there is nothing complicated about the law as it stands, and ‘degrees of rape’ would only serve to complicate it. What makes rape cases difficult is that usually it is one person’s word against another’s.
…
If consent is predicated on condom use, and a condom isn’t used, and the woman complains to the police, then rightly there will be a rape investigation. If there is a reasonable prospect of conviction, and if it is in the public interest to prosecute, then the alleged offender will be prosecuted. There is a potential maximum sentence of life imprisonment. But the sentence in this particular example will probably be less than, say, that for a case where violence was used.”

I’ve not sat on a rape jury, but I imagine it is hard to get unanimous agreement to convict – potentially for life – in the situation you describe above. Trusting the judge to set the sentence appropriately will be too much for some people.

If it were prosecuted as a lesser sentence with a less extreme maximum punishment, that problem would reduce and prosecutions may increase.

*GBH has the same actus reus as GBH+I, but the same mens rea as ABH; since attempt is charged on a mens rea, plus sufficient actus reus to demonstrate that they really meant it, attempted GBH and attempted ABH are the same offence, which is attempted ABH. Plain GBH is essentially a way of enhancing the sentence when someone does more damage than they intended.

There’s jumping out of hedge and cutting a stranger’s throat. There’s a drunken punch-up which goes wrong when someone loses their head and grabs a knife. There’s suffocating your old dad with a pillow, exactly as you promised years earlier, if he ever got to this stage.

Or you could say the same about theft – exercise left to the reader.

We already have a way to distinguish between the same crime in different mitigating or exacerbating circumstances. It’s called a “court”.

Larry (#28), actually one problem is that a lot of those decisions are not taken by the court, but by the Crown Prosecution Service deciding who to prosecute and for what offences.

Yes, some of that is based on what the courts would accept, in terms of their chance of conviction, but by no means all.

So there’s a pub fight, and someone gets hit with a bottle. There must be at least a dozen different possible offences; from common assault to attempted murder, plus the whole range from drunk & disorderly to affray, with sidelines into carrying an offensive weapon (is attempting to prevent the sale of grain still an offence?).

We could throw the lot at the court and let them decide, but I think the general practice is for the CPS to decide on one or two offences out of the mix and prosecute those.

Does the question answer itself , whether or not you like the conclusion? Rape is what the law says it is. The penalty is what the law /sentencing guidelines say. Maybe the law/sentencing guidelines should be changed, maybe not.

Given your frankly bizarre question about whether rape causes pregnancy, I’m troubled about you. Your view (if I understand correctly) is that a foetus is a person. OK, I disagree, but it’s a defensible view. If so, why does it matter if rape is or is not likely to lead to conception? On your view, it makes no difference if all or no rapes lead to conception. If you’re going to be tough minded and consistent, be consistent. If you don’t like the conclusions your tough minded consistent views lead to, review those views.

Tim adds: I think it is indeed my job to make sure that my views are consistent.

I’m deeply unconvinced that this means that my questions must be so. For after all, skewing a question one way or another can inform me in the consistency of my views. As the answers come in, you understand.

In this particular case: “rape is or is not likely to lead to conception?” As I don’t know the answer, and would like to, who should I ask other than you lot, who know so much more than I do?

“On your view, it makes no difference if all or no rapes lead to conception.”

Sure it does. If all rapes lead to conception then we should be hanging rapists (hyperbole, as I’m agin the death penalty) for forcing an unwanted child upon a woman. If none do then the “but what about rape?” argument about abortion disappears.

Neither of those change my position that it’s a quite remarkable crime where society accepts that the obvious solution is the death of the one and only obviously, under any circumstances, innocent in the case.

If he started to screw her and she woke up and told him to stop and he did not, that’s rape. Difficult to prove given the earlier consensual acts, but possible. But that’s not what she says.

If she said nothing and let the act continue but a few days later decided that she’d have preferred him to stop, that may be rape but it’s not provable since he had no means of knowing of her discontent at the time of the act. I think this is what she says.

If she cooperated in any way, including the odd gasp of pleasure, she gave implicit consent and so is perjuring herself. Again, impossible to prove absent CCTV.

If I were a young Swede I’d want every sexual encounter videoed (with sound to record the request/assent bit). Three copies, one each, one in escrow. Job done.

@ Tim #30
Feminists disagree with your claim “the one and only obviously, under any circumstances, innocent in the case.” assuming that the female is innocent until proved guilty (old-fashioned English Law).

TG: I don’t know about Swedish Law, but in the UK you’d be mistaken to think that. The Sexual Offences Act is unambiguous on the point; a sleeping person is taken not to have consented unless the defence can show otherwise.

Tim: did you really mean to say that if a man rapes a woman and she becomes pregnant, the only innocent party is the resulting blastocyst? Implying that the woman is guilty of something?

Tim adds: No, my meaning was, in the case of a pregnancy, any pregnancy, before we start to discuss consent, who should have been responsible for contraception and all the rest, the one innocent party that we absolutely know is innocent is the foetus.

If she said nothing and let the act continue but a few days later decided that she’d have preferred him to stop, that may be rape but it’s not provable since he had no means of knowing of her discontent at the time of the act. I think this is what she says.

It isn’t – see my quote and cite above.

The allegation in short: condom prerequisite for consent; no condom, no consent; when he penetrated her absent condom, he had no reasonable belief in consent.

Tim: did you really mean to say that if a man rapes a woman and she becomes pregnant, the only innocent party is the resulting blastocyst? Implying that the woman is guilty of something?</blockquote.

Reading it a bit more sympathetically, perhaps implying that, in some circumstances, the woman might be guilty of something (lying about her lack of consent, for example). See JuliaM’s little collection.

However, the blastocyst or, given the sloth-like rapidity of the law, the foetus, is rather unlikely to be guilty of anything.

There are four allegations against Assange, only one of which is rape under Swedish law. The allegation to which you refer – not using a condom – is an allegation of Sexual Molestation, although the equivalent UK crime would be rape. The alleged rape under Swedish law was what Thomas Gibbon says, namely that he penetrated her when she was asleep and could not give consent. That would also be rape under UK law.